Beardsley v Registrar of Titles

[1993] HCATrans 8

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B47 of 1992

B e t w e e n -

MARIE BEARDSLEY (otherwise

known as MARY BEARDSLEY)

Applicant

and

REGISTRAR OF TITLES

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J GAUDRON J

Beardsley 1 5/2/93

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 FEBRUARY 1993, AT 2.12 PM

Copyright in the High Court of Australia

MR F.L. HARRISON, QC:  May it please the Court, I appear

with my learned friend, MR H.G. LINACRE, for the

applicant. (instructed by McDonald Balanda &

Chesters)

MR P.A. KEANE, QC, Solicitor-General for Queensland: May it

please the Court, I appear with my learned friend, the Crown Solicitor for the State of Queensland)

MASON CJ: Yes.

MR HARRISON: If Your Honours please, before I turn to the

outline of argument, which I trust Your Honours

have, I should go straight to the sections in

question. Section 126 starts at page 52 of the

pamphlet copy, and if I could point to the basic

submissions that we would make if leave is granted,

as to the effect of this section - that is

section 126, and the following section 127 - which

we should submit is to be construed against the

background of being intended to provide

compensation for persons who are deprived of their

interest in land by the operation to the Torrens

System in circumstances such as the case of forgery

where, under the old system, they would retain

their title.

It starts by saying:

Any person deprived of any land or of any

estate or interest in land in consequence of

fraud -

and then, omitting some words -

May bring and prosecute an action at law in

the Supreme Court for the recovery of damages

against the person who derived benefit by such
fraud.

And that raises an issue that I will come to in due

course as to who is the person who derived benefit.

Then one goes to the proviso:

Provided always that no such action -

that is the action against the person who derived

benefit from the fraud -

shall lie or be sustained unless the same
shall be commenced within six years from the

date of such deprivation.

Beardsley 2 5/2/93

Which again raises another point. Then one goes to

section 127; the first part of which, we would

submit, is concerned with what occurs in the case

of certain types of disability, and it commences:

In case the person against whom such action

for damages is directed to be brought shall be

dead or shall have been adjudged insolvent -

and I will omit the next few words -

it shall be lawful to bring an action for

damages against the Registrar-General as

nominal defendant.

There is no specific limitation in that provision

as to when such an action may be commenced. It is

not - and it is accepted on our side that the Court

should take this provision as subject to the

following limitation, that is that when the

disability occurs there must still be an action

under section 126, and that may perhaps be imported

from the reference to the person against whom such
action for damages is directed to be brought, in
that those words do not apply if the time has

expired in section 126.

It is our submission that that is as much as a

limitation as it is necessary to read that

provision as importing to give the section a
sensible operation in that it does not give rise to

the circumstances which the Court of Appeal

appeared to be seeking to avoid, that is, of a

cause of action arising 10, 20 years or more after

the actual deprivation.

In so reading section 127 all one does is

produce a familiar result of a limitation ceasing

to run, for example, in the event of bankruptcy,

the law in relation to the operation of something which was well known in other areas of limitations. And that is as far as the section is

directly relevant to this - - -

GAUDRON J: That only avails you in this case, does it not,

if your deprivation should have occurred subsequent

to 1984?

MR HARRISON:  Yes, Your Honour. I am sorry, Your Honour,

that argument avails us - although the relief we

get may be of not much practical use in that there

is a further limitation on the liability of the

fund -

GAUDRON J: But you brought your action in December 1990?

MR HARRISON:	Yes, Your Honour.
Beardsley	5/2/93
GAUDRON J:	And why would your action still be alive under

section 126 which you concede must be imported into

section 127 if the deprivation occurred in the 1984

period?

MR HARRISON:  We say that what section 127 requires is that

the action be alive under section 126 when, in our

case, the husband was made bankrupt in October 1988

GAUDRON J: Yes, thank you.

MR HARRISON:  - - - and that that is an action which, at

least throughout the disability, does not suffer

from a limitation period.

TOOHEY J:  Do you mean, Mr Harrison, that the period may

commence to run again once there has been a

discharge from bankruptcy?

MR HARRISON:  It is a question that might be argued,

although on a straightforward interpretation of it

once the cause of action has arisen it is there and

nothing more is required, although it might be

possible to argue that it requires the continuation

of the bankruptcy.

MASON CJ:  What does the second-last proviso mean though:

the assurance fund shall not be liable for
payment of any damages after the expiration of

six years from the time when the cause of

action arose.

MR HARRISON: There are two stages involved either in our

case or in a case where the fraudulent person is

sued immediately.	The first is to get the
judgment.	Then there is the second of seeking to

satisfy the judgment out of the fund.

Oddly, as appeared from Breskvar v White, the

limitation is on recovery of damages from the fund

but not of costs, although perhaps that is by the
by. But that is not an element of the cause of

action that we are suing on, although it affects

our capacity to realize on any judgment that we

obtain. It is not framed as a bar to the recovery

of the judgment.

MASON CJ: But does not that proviso rather support the view

that the action under 127 is derivative from 126

and that the reference to the cause of action

arising goes back to 126?

MR HARRISON:  We would submit that it is neutral,

Your Honour. It is a separate bar, which applies

in any case. It may an ill-conceived bar in that

Beardsley 5/2/93

it is one that may defeat actions that are properly

commenced, simply by the fact that an action may be

commenced, even under 126, within the six years,

but not get to judgment until after six years.

MASON CJ: But why should be grant you special leave so that

you can pursue an action that will not yield any

fruits for you against the assurance fund?

MR HARRISON:  Your Honour, we go on to say that there are

further reasons why, if we have an action, we

should recover and they are these. The first is,

it is our submission, that in fact, in the case of

a mortgage the deprivation occurs, not on the grant

of the mortgage, but when there is damage suffered

in a real and appreciable sense.

MASON CJ:  Have you any authority to support that point of

view?

MR HARRISON:	Your Honour, the basis on which we argue, that is - this matter was decided before the decision of
the High Court in Wardley's case, but on the basis,
we would say, of the reasoning which was adopted in
Wardley's case, that in the case of a mortgage, it
is always possible that there will be no loss
suffered because the loss is suffered as a
practical matter when some inhibition is placed on
enjoyment of the land.  Now that may occur - in the
present case, it occurred only when the mortgagee sought to exercise its power of sale, because the
plaintiff/applicant was ignorant of the existence
of the mortgage for many years.

MASON CJ: But the sections do not speak of loss in that

sense, do they? Section 126 speaks of any person
deprived of any land, or any estate or interest in
land, and that is precisely what the mortgage does.

It deprives the registered proprietor of an estate

or an interest in land.

MR HARRISON:	It confers an interest on the mortgagee in the nature of a charge, but it is a deprivation which,
we would submit, is a contingent deprivation in
that no loss is actually brought home to the person
until such time as there is a default under the
mortgage, in that the mortgage is, as it were, in
existence, available to the mortgagee, to be acted upon in the case of a default, but until then does not inhibit in any way the enjoyment of the
occupation of the land as a physical
subject-matter, and only creates an inhibition to
dealings with the land once the proprietor desires
to deal with the land in some way inconsistent with
the mortgage itself.

Beardsley 5 5/2/93

Your Honours, if that is a point on which we

fail to convince Your Honours that there is a

matter which justifies leave, we would also submit

that the court unnecessarily limited the measure of

damages flowing from, what I think was accepted on

both sides, as a - must have at least been a

deprivation, that is, the deprivation that occurred

on the mortgagee exercising its power of sale.

The court interpreted section 126 and

section 127 as conferring in that case damages

measured by the amount of the relevant deprivation,

which we submit is not something which is

necessarily imported by the words of the section.

It provides that:

Any person deprived of any land ..... in consequence of fraud ..... may bring and

prosecute an action ..... for the recovery of

damages against the person who derived

benefit -

Although it is an element of the cause of action

that there should be a deprivation, it is in

essence an action for fraud. It is our submission

that if one has such a cause of action, it is not

necessarily imported into section 126 that it will

be limited by the measure of the particular

deprivation that has led to the bringing of that

action. In other words, that one can go back and

recover all the damages consequent upon the fraud
all the damages which in many cases will have
benefited the person who is the defendant to the

proceedings.

We do seek to raise a further point if leave

were to be granted concerning the basic - - -

MASON CJ:  By that, do you mean this is a special leave

point or that it is not?

MR HARRISON:  The further point we say is a special leave

point, and that is the decision arrived at by

Mr Justice Ryan that the cause of action in

section 126 was limited in a case such as the

present to an action against the person who derived

title by the fraud which, we submit, is an undue

limitation on the particular words of the section.

GAUDRON J: That point only arises if you succeed on all the

other points.

MR HARRISON: That is so, Your Honour.

GAUDRON J: All of them?

Beardsley 6 5/2/93

MR HARRISON:  I do not have to succeed on all of them if I

succeed on the date of deprivation point. It will

necessarily arise if I succeed on one or other of

the points. The other matter mentioned in the

outline of argument is one which perhaps one cannot

in the circumstances of this case press as a point

for the grant of special leave, although we would

seek to argue that if leave is granted, and that

relates to the construction of section 128.

I phrase the submission in that diffident

manner because it is an argument that was not put

in those terms to the Court of Appeal.

GAUDRON J:  So far as you have a cause of action under

section 128, that goes back to the registration,

does it not?

MR HARRISON:	Yes, Your Honour.
GAUDRON J:	And that is governed by the General Limitation Act, or it is free of a limitation provision, do
you say?
MR HARRISON:	We would submit that it is free of a

limitation period, but I say that without a great

degree of confidence.

GAUDRON J: Yes, because your general limitation period

would run from the date of registration and you
would be out of time for any action under

section 128, would you not?

MR HARRISON:  If there were a six year limitation period.

If it were a 12 year limitation period, not.

GAUDRON J: It is an ordinary action for negligence, is it

not, virtually.

MR HARRISON:  Yes, it would be an ordinary action for

negligence, Your Honour. Your Honour, those are

the submissions we would make in support of the

application for special leave.

MASON CJ: Yes, thank you, Mr Harrison. The Court need not

trouble you, Mr Solicitor. The Court is not

persuaded that the decision of the Court of Appeal

is attended with sufficient doubt to justify the

grant of special leave to appeal.	The application
is therefore refused.

MR KEANE:	We ask for costs, Your Honours.
MASON CJ:	Yes.  You do not oppose an order for costs

Mr Harrison?

MR HARRISON:  No, Your Honour.

Beardsley 7 5/2/93

MASON CJ:  The application is refused with costs.

AT 2.31 PM THE MATTER WAS ADJOURNED SINE DIE

Beardsley 5/2/93